BSA Construction, Rev. 17; (Jan 2018) 1 of 47 BROOKHAVEN SCIENCE ASSOCIATES, LLC GENERAL TERMS AND CONDITIONS FOR CONSTRUCTION AND LABOR HOUR AGREEMENTS AT BROOKHAVEN NATIONAL LABORATORY Table of Contents Article 1 DEFINITIONS................................................................................................................... 3 Article 2 ORDER OF PRECEDENCE ............................................................................................. 3 Article 3 ACCEPTANCE OF AGREEMENT, SURVIVABILITY ................................................. 4 Article 4 COMPLETE AGREEMENT ............................................................................................. 4 Article 5 UNAUTHORIZED OBLIGATION .................................................................................. 4 Article 6 RESPECTFUL WORKPLACE POLICY .......................................................................... 4 Article 7 REPORTING ENVIRONMENTAL, SAFETY, HEALTH AND TECHNICAL CONCERNS ...................................................................................................................... 5 Article 8 ASSIGNMENT .................................................................................................................. 5 Article 9 DISPUTES ......................................................................................................................... 5 Article 10 NOTICE REGARDING LATE PERFORMANCE ........................................................... 6 Article 11 NO WAIVER ..................................................................................................................... 7 Article 12 NEW MATERIALS........................................................................................................... 7 Article 13 FAR 52.225-9 BUY AMERICAN ACT-CONSTRUCTION MATERIALS .................... 7 Article 14 HAZARDOUS MATERIALS IDENTIFICATION AND MATERIAL SAFETY DATA ..........................................................................................................................................10 Article 15 EXCUSABLE DELAYS ..................................................................................................10 Article 16 PAYMENT .......................................................................................................................11 Article 17 INSPECTION ..................................................................................................................12 Article 18 TAXES .............................................................................................................................13 Article 19 TITLE AND RISK OF LOSS ...........................................................................................13 Article 20 WARRANTY ...................................................................................................................13 Article 21 EXTRAS ...........................................................................................................................14 Article 22 LIMITATION OF LIABILITY ........................................................................................14 Article 23 COMPLIANCE WITH LAWS .........................................................................................14 Article 24 COMPLIANCE WITH INTERNET PROTOCOL VERSION 6 (IPv6) IN ACQUIRING INFORMATION TECHNOLOGY ..................................................................................14 Article 25 AUTHORIZATION AND CONSENT .............................................................................15 Article 26 PATENT INDEMNITY-SUPPLIES AND SERVICES ...................................................15 Article 27 REPORTING OF ROYALTIES .......................................................................................15 Article 28 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT ............................................................................................................16 Article 29 SUSPECT/ COUNTERFEIT ITEMS ...............................................................................16 Article 30 APPLICABLE LAW ........................................................................................................17 Article 31 BANKRUPTCY ...............................................................................................................17 Article 32 WALSH-HEALY PUBLIC CONTRACTS ACT .............................................................18 Article 33 INTELLECTUAL PROPERTY INDEMNITY ................................................................18 Article 34 INDEMNITY FOR DEFECTIVE COST OR PRICING DATA ......................................18 Article 35 LIABILITY WITH RESPECT TO COST ACCOUNTING STANDARDS ....................19 Article 36 WHISTLEBLOWER PROTECTION FOR CONTRACTOR EMPLOYEES .................19 Article 37 PRESS RELEASES AND OTHER PUBLIC DISSEMINATION OF CONTRACT INFORMATION ..............................................................................................................19 Article 38 REPORTING EXECUTIVE COMPENSATION (Agreements valued at $30,000 or more) .................................................................................................................................19 Article 39 IDENTIFICATION OF EMPLOYEES ............................................................................20 Article 40 BADGING OF CONTRACTOR EMPLOYEES ..............................................................20
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BSA Construction, Rev. 17; (Jan 2018) 1 of 47
BROOKHAVEN SCIENCE ASSOCIATES, LLC
GENERAL TERMS AND CONDITIONS
FOR CONSTRUCTION AND LABOR HOUR AGREEMENTS
AT
BROOKHAVEN NATIONAL LABORATORY
Table of Contents Article 1 DEFINITIONS................................................................................................................... 3 Article 2 ORDER OF PRECEDENCE ............................................................................................. 3 Article 3 ACCEPTANCE OF AGREEMENT, SURVIVABILITY ................................................. 4 Article 4 COMPLETE AGREEMENT ............................................................................................. 4 Article 5 UNAUTHORIZED OBLIGATION .................................................................................. 4 Article 6 RESPECTFUL WORKPLACE POLICY .......................................................................... 4 Article 7 REPORTING ENVIRONMENTAL, SAFETY, HEALTH AND TECHNICAL
CONCERNS ...................................................................................................................... 5 Article 8 ASSIGNMENT .................................................................................................................. 5 Article 9 DISPUTES ......................................................................................................................... 5 Article 10 NOTICE REGARDING LATE PERFORMANCE ........................................................... 6 Article 11 NO WAIVER ..................................................................................................................... 7 Article 12 NEW MATERIALS........................................................................................................... 7 Article 13 FAR 52.225-9 BUY AMERICAN ACT-CONSTRUCTION MATERIALS .................... 7 Article 14 HAZARDOUS MATERIALS IDENTIFICATION AND MATERIAL SAFETY DATA
..........................................................................................................................................10 Article 15 EXCUSABLE DELAYS ..................................................................................................10 Article 16 PAYMENT .......................................................................................................................11 Article 17 INSPECTION ..................................................................................................................12 Article 18 TAXES .............................................................................................................................13 Article 19 TITLE AND RISK OF LOSS ...........................................................................................13 Article 20 WARRANTY ...................................................................................................................13 Article 21 EXTRAS ...........................................................................................................................14 Article 22 LIMITATION OF LIABILITY ........................................................................................14 Article 23 COMPLIANCE WITH LAWS .........................................................................................14 Article 24 COMPLIANCE WITH INTERNET PROTOCOL VERSION 6 (IPv6) IN ACQUIRING
INFORMATION TECHNOLOGY ..................................................................................14 Article 25 AUTHORIZATION AND CONSENT .............................................................................15 Article 26 PATENT INDEMNITY-SUPPLIES AND SERVICES ...................................................15 Article 27 REPORTING OF ROYALTIES .......................................................................................15 Article 28 NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT
INFRINGEMENT ............................................................................................................16 Article 29 SUSPECT/ COUNTERFEIT ITEMS ...............................................................................16 Article 30 APPLICABLE LAW ........................................................................................................17 Article 31 BANKRUPTCY ...............................................................................................................17 Article 32 WALSH-HEALY PUBLIC CONTRACTS ACT .............................................................18 Article 33 INTELLECTUAL PROPERTY INDEMNITY ................................................................18 Article 34 INDEMNITY FOR DEFECTIVE COST OR PRICING DATA ......................................18 Article 35 LIABILITY WITH RESPECT TO COST ACCOUNTING STANDARDS ....................19 Article 36 WHISTLEBLOWER PROTECTION FOR CONTRACTOR EMPLOYEES .................19 Article 37 PRESS RELEASES AND OTHER PUBLIC DISSEMINATION OF CONTRACT
INFORMATION ..............................................................................................................19 Article 38 REPORTING EXECUTIVE COMPENSATION (Agreements valued at $30,000 or
more) .................................................................................................................................19 Article 39 IDENTIFICATION OF EMPLOYEES ............................................................................20 Article 40 BADGING OF CONTRACTOR EMPLOYEES ..............................................................20
BSA Construction, Rev. 17; (Jan 2018) 2 of 47
Article 41 CONTROLLED SUBSTANCES AND ALCOHOL ........................................................21 Article 42 CONTROLLED SUBSTANCE FREE AND ALCOHOL-FREE WORKPLACE ...........22 Article 43 REPORTING OF ACCIDENTS/EVENTS ......................................................................24 Article 44 INSPECTION OF VEHICLES AND MATERIALS ........................................................25 Article 45 INSURANCE....................................................................................................................25 Article 46 PERFORMANCE AND PAYMENT BOND REQUIREMENTS ...................................26 Article 47 CONTRACTOR’S RESPONIBILITIES ..........................................................................26 Article 48 SUPERINTENDENCE BY THE CONTRACTOR ..........................................................27 Article 49 LABOR STANDARDS ....................................................................................................27 Article 50 NOTICE REGARDING LABOR DISPUTES .................................................................27 Article 51 CHANGES .......................................................................................................................28 Article 52 NOTIFICATION OF CLAIMS AND DOCUMENTATION ...........................................28 Article 53 AN EQUITABLE ADJUSTMENT SHALL BE DETERMINED AS FOLLOWS: .........29 Article 54 MATERIAL AND WORKMANSHIP .............................................................................30 Article 55 SUBCONTRACTORS .....................................................................................................30 Article 56 INSPECTION OF CONSTRUCTION .............................................................................31 Article 57 WARRANTY OF CONSTRUCTION ..............................................................................32 Article 58 EXISTING CONDITIONS ...............................................................................................33 Article 59 DIFFERING SITE CONDITIONS ...................................................................................33 Article 60 SUSPENSION OF WORK ...............................................................................................34 Article 61 TIME FOR PERFORMANCE AND DELAYS ...............................................................34 Article 62 TERMINATION FOR DEFAULT ...................................................................................36 Article 63 TERMINATION FOR CONVENIENCE .........................................................................36 Article 64 PATENT INDEMNITY – SUBCONTRACTS ................................................................37 Article 65 INDEPENDENT CONTRACTOR; HOLD HARMLESS ...............................................37 Article 66 COMPLIANCE WITH 10 CFR 851 AND BSA’S WORKER SAFETY AND HEALTH
PROGRAM .......................................................................................................................38 Article 67 CLAUSES INCORPORATED BY REFERENCE ...........................................................44
BSA Construction, Rev. 17; (Jan 2018) 3 of 47
Article 1 DEFINITIONS
The following terms shall have the meanings below:
(a) "Agreement" means the contract; or purchase order; or Basic Ordering Agreement
(BOA); or Task Agreement, and any modifications thereto, including all contract
documents (Contract Documents). The Agreement includes without limitation the
specifications, drawings, General Terms and Conditions and any special or
supplemental terms and conditions, when incorporated into this Agreement by
reference or otherwise.
(b) “BSA” means Brookhaven Science Associates, LLC acting under a Prime
Contract between BSA and the United States Government (Government) for the
operation of Brookhaven National Laboratory (referred to as Brookhaven, BNL,
or Laboratory), and includes the successor to, or any duly authorized
representative of BSA.
(c) “Brookhaven”, “BNL”, or “the Laboratory” refers to the Brookhaven National
Laboratory site at Upton, New York.
(d) “BSA’s PPM Division” means the BSA Procurement and Property Management
Division (PPM).
(e) “Contract” is the document (including but not limited to contract; or purchase
order; or Basic Ordering Agreement (BOA); or Task Agreement) that is executed
by both BSA and the Contractor that creates the Agreement.
(f) “Contract Documents” means all documents that comprise this Agreement
including without limitation, the specifications, drawings, the General Terms and
Conditions and any special or supplemental terms and conditions, when
incorporated into this Agreement by reference or otherwise. “Government" means
the United States of America and includes the U.S. Department of Energy (DOE)
or any duly authorized representative thereof. This Agreement does not bind nor
purport to bind the Government.
(g) “Contractor” means any person or organization that has entered into this
Agreement with BSA.
(h) “Government” means the United States of America including the U.S.
Department of Energy (DOE) or any duly authorized representative(s) thereof.
(i) “Prime Contract” means the contract between BSA and the Government.
(j) The clause at FAR 52.202-1, Definitions, is incorporated herein by reference.
Article 2 ORDER OF PRECEDENCE
In the event of an inconsistency among provisions of this Agreement, the inconsistency
shall be resolved by giving precedence in the following order:
(a) the Contract,
(b) special terms and conditions included in or incorporated by reference in the
Contract,
(c) Supplemental Terms and Conditions,
(d) General Terms and Conditions,
(e) the Statement of Work,
(f) specifications and
(g) drawings, if any, incorporated in this Agreement by reference or otherwise.
BSA Construction, Rev. 17; (Jan 2018) 4 of 47
Article 3 ACCEPTANCE OF AGREEMENT, SURVIVABILITY
(a) By signing this Contract, delivering the supplies, or performing the requirements
indicated herein, the Contractor agrees to comply with all the terms and
conditions and all specifications and other documents incorporated in this
Agreement by reference or otherwise. Notwithstanding the above, this Agreement
shall become a binding contractual commitment within 10 days after the
Contractor receives it unless the Contractor furnishes written notice of objection
to BSA within said 10 days.
(b) An attempted acknowledgment or acceptance which contains provisions
conflicting with or additional to these Terms and Conditions or which varies any
terms or conditions shall have no force or effect.
(c) All rights and obligations of the parties shall survive final performance of this
Agreement.
Article 4 COMPLETE AGREEMENT
This Agreement expresses the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes any prior oral and written agreements
between the parties. It may only be modified in writing executed by both BSA and the
Contractor except as otherwise stated herein.
Article 5 UNAUTHORIZED OBLIGATION
When any supply or service acquired under this contract is subject to any End Use
License Agreement (EULA), Terms of Service (TOS), or similar legal instrument or
agreement, that includes any clause requiring BSA or the Government to indemnify the
Contractor or any person or entity for damages, costs, fees, or any other loss or liability,
the following shall govern:
(i) Any such clause is unenforceable against BSA and the Government unless
separately and specifically agreed to.
(ii) Neither BSA nor any BSA authorized end user shall be deemed to have
agreed to such clause by virtue of it appearing in the EULA, TOS, or
similar legal instrument or agreement.
(iii) Any such clause is deemed to be stricken from the EULA, TOS, or similar
legal instrument or agreement.
Article 6 RESPECTFUL WORKPLACE POLICY
BSA is committed to providing a safe work environment for employees, contractors,
guests and visitors, that is based on courtesy, civility and respectful communication. Acts
or threats of violence, obscene or harassing telephone calls, verbal abuse, and any
behavior meant to intimidate others are examples of actions that are prohibited on site at
any time. Violators of this policy will be subject to disciplinary action up to and including
discharge, debarment from site, or criminal arrest and prosecution.
BSA Construction, Rev. 17; (Jan 2018) 5 of 47
Article 7 REPORTING ENVIRONMENTAL, SAFETY, HEALTH AND
TECHNICAL CONCERNS
The Contractor will ensure that all Contractor employees are notified quarterly that they
have the right to report environment, safety, health and technical concerns that have not
been resolved through routine work processes through the Department of Energy
Differing Professional Opinion (DPO) process ((the DOE DPO process can be found in
Attachment 2 to DOE O 442.2 and at http://www.hss.doe.gov/nuclearsafety/qa/dpo.html).
The notification must provide points of contact (name, phone number and email addresses of
DPO Managers) as listed on the DOE DPO web page, as well as the DOE DPO web page
address.
Article 8 ASSIGNMENT
Neither this Agreement nor any interest therein nor claim there under shall be assigned or
transferred by the Contractor except as expressly authorized in writing by BSA, provided
that the Contractor or its assignee’s rights to be paid amounts due as a result of
performance of this Agreement may be assigned to a bank, trust company or other
financing institution, including any federal lending institution. This Agreement is
assignable by BSA to the Government or to a successor contractor for the operation of
Brookhaven. The Contractor agrees to look solely to the Government or to such successor
contractor for payment of the part so assigned, and to execute a novation agreement so
recognizing the successor contractor if requested to do so by BSA.
Article 9 DISPUTES
(a) Good Faith Negotiation. The parties agree that they will attempt in good faith to
resolve through negotiation any dispute, claim or controversy arising out of or
relating to this Agreement. Either party may initiate negotiations by providing
written notice in letter form to the other party, setting forth the subject of the
dispute and the relief requested. The recipient of such notice agrees to respond in
writing within five days with a statement of its position on and recommended
solution to the dispute. If the dispute is not resolved by this exchange of
correspondence, then representatives of each party with full settlement authority
will meet at a mutually agreeable time and place within fifteen days of the date of
the initial notice in order to exchange relevant information and perspectives, and
to attempt to resolve the dispute. If the dispute is not resolved by these
negotiations, the matter will be submitted to Judicial Arbitration and Mediation
Services (JAMS), or its successor, for mediation, following the procedure
described in Subparagraph B, below. Pending settlement or a final judgment, the
Contractor will proceed diligently with performance of this Agreement according
to the instructions of BSA’s contractual representative.
(b) Mediation. Except as provided in this Agreement, the parties agree that neither
will commence any civil action with respect to any dispute, claim or controversy
arising out of or relating to this Agreement until the matter has been submitted to
JAMS (45 Broadway, 28th Floor, New York, NY 10006, 212-751-2700), its
successor, for mediation and that process has been completed. Either party may
commence mediation by providing to JAMS and the other party a written request
for mediation, setting forth the subject of the dispute and the relief requested. The
BSA Construction, Rev. 17; (Jan 2018) 6 of 47
parties agree to cooperate with JAMS and with one another in selecting a
mediator from JAMS panel of neutrals, and in scheduling the mediation
proceedings. The parties covenant that they will participate in the mediation in
good faith, and that they will share equally in its costs. The parties further agree
that they will treat as confidential all offers, promises, conduct and statements,
whether oral or written, made in the course of the mediation by any of the parties,
their agents, employees, experts and attorneys, and by the mediator and any
JAMS employees. The parties also agree that they will treat any such
communications as privileged and inadmissible for any purpose, including
impeachment, in any litigation or other proceeding involving the parties, provided
that evidence that is otherwise admissible or discoverable will not be rendered
inadmissible or non-discoverable as a result of its use in the mediation. Either
party may seek equitable relief prior to the mediation to preserve the status quo
pending the completion of that process. Except for such an action to obtain
equitable relief, neither party may commence a civil action with respect to the
matters submitted to mediation until after the completion of the initial mediation
session, or forty-five (45) days after the date of filing the written request for
mediation, whichever occurs first. Mediation may continue after the
commencement of a civil action, if the parties so desire. The provisions of this
Article may be enforced by any court of competent jurisdiction, and the party
seeking enforcement will be entitled to an award of all costs, fees and expenses,
including attorney’s fees, to be paid by the party against whom enforcement is
ordered.
(c) Waiver of Right to Litigate in Court Before Completing Negotiation and
Mediation and Waiver of Right to Jury Trial and Designation of Court Sitting in
the State of New York. The Contractor agrees to submit all disputes, claims or
controversies arising out of or relating to this Agreement to negotiation and then
mediation as described above before bringing any action in court. The Contractor
further acknowledges that, in the event it brings any such action in court, it will
bring that action in a court sitting in the State of New York, and it further
acknowledges that it is hereby waiving any right that it might possess to demand a
jury trial for the litigation of that action. The Contractor further acknowledges
that it is giving up any rights to judicial remedies and procedures to the extent that
this agreement does not specifically provide for them. The Contractor further
acknowledges that its agreement to the provision for this Agreement is voluntary.
Article 10 NOTICE REGARDING LATE PERFORMANCE
If the Contractor encounters difficulty in meeting performance requirements, or
anticipates difficulty in complying with the delivery schedule or date, the Contractor shall
immediately notify BSA’s Procurement and Property Management Division (PPM) in
writing, giving pertinent details, including the date by which it expects to complete
performance or make delivery. This notice shall be informational only, and BSA’s receipt
of this notice shall not be construed as a waiver of any schedule or date, or any rights or
remedies provided by law or under this Agreement.
BSA Construction, Rev. 17; (Jan 2018) 7 of 47
Article 11 NO WAIVER
BSA’s acceptance of the goods or services delivered hereunder and its subsequent use
thereof shall not constitute a waiver of any improper materials or workmanship, or BSA’s
rights and remedies with respect to them. BSA’s acceptance and its subsequent use of
goods or services delivered after the agreed upon delivery date shall not constitute a
waiver by BSA of any rights arising from said late delivery.
Article 12 NEW MATERIALS
Unless otherwise specified in this Agreement, all supplies delivered hereunder shall
consist of new materials. “New” is defined as previously unused which may include
residual inventory or unused former Government surplus property. This does not exclude
use of recycled or recovered material as defined by the Environmental Protection Agency
in 40 CFR 247.
Article 13 FAR 52.225-9 BUY AMERICAN ACT-CONSTRUCTION
MATERIALS
For the purposes of this Agreement Contracting Officer means BSA.
(a) Definitions. As used in this clause--
“Commercially available off-the-shelf (COTS) item”—
(i) Means any item of supply (including construction material) that is—
1. A commercial item (as defined in paragraph (1) of the definition at
FAR 2.101);
2. Sold in substantial quantities in the commercial marketplace; and
3. Offered to the Government, under a contract or subcontract at any
tier, without modification, in the same form in which it is sold in
the commercial marketplace; and
(ii) Does not include bulk cargo, as defined in section 3 of the Shipping Act of
1984 (46 U.S.C. App. 1702), such as agricultural products and petroleum
products.
“Component” means an article, material, or supply incorporated directly into a
construction material.
“Construction material” means an article, material, or supply brought to the construction
site by the Contractor or a subcontractor for incorporation into the building or work. The
term also includes an item brought to the site preassembled from articles, materials, or
supplies. However, emergency life safety systems, such as emergency lighting, fire
alarm, and audio evacuation systems, that are discrete systems incorporated into a public
building or work and that are produced as complete systems, are evaluated as a single and
distinct construction material regardless of when or how the individual parts or
components of those systems are delivered to the construction site. Materials purchased
directly by the Government are supplies, not construction material.
“Cost of components” means--
BSA Construction, Rev. 17; (Jan 2018) 8 of 47
(i) For components purchased by the Contractor, the acquisition cost,
including transportation costs to the place of incorporation into the
construction material (whether or not such costs are paid to a domestic
firm), and any applicable duty (whether or not a duty-free entry certificate
is issued); or
(ii) For components manufactured by the Contractor, all costs associated with
the manufacture of the component, including transportation costs as
described in paragraph (i) of this definition, plus allocable overhead costs,
but excluding profit. Cost of components does not include any costs
associated with the manufacture of the construction material.
“Domestic construction material” means—
(i) An unmanufactured construction material mined or produced in the United
States;
(ii) A construction material manufactured in the United States, if—
1. The cost of its components mined, produced, or manufactured in
the United States exceeds 50 percent of the cost of all its
components. Components of foreign origin of the same class or
kind for which nonavailability determinations have been made are
treated as domestic; or
2. The construction material is a COTS item.
“Foreign construction material” means a construction material other than a domestic
construction material.
“United States” means the 50 States, the District of Columbia, and outlying areas.
(b) Domestic preference.
(i) This clause implements the Buy American Act (41 U.S.C. 10a-10d) by
providing a preference for domestic construction material. In accordance
with 41 U.S.C. 431, the component test of the Buy American Act is
waived for construction material that is a COTS item. (See FAR
12.505(a)(2)). The Contractor shall use only domestic construction
material in performing this contract, except as provided in paragraphs
(b)(ii) and (b)(iii) of this clause.
(ii) This requirement does not apply to information technology that is a
commercial item or to the construction materials or components listed by
the Government as follows: _NONE __ [Contracting Officer to list
applicable excepted materials or indicate “none”]
(iii) The Contracting Officer may add other foreign construction material to the
list in paragraph (b)(ii) of this clause if the Government determines that
1. The cost of domestic construction material would be unreasonable.
The cost of a particular domestic construction material subject to
the requirements of the Buy American Act is unreasonable when
the cost of such material exceeds the cost of foreign material by
more than 6 percent;
BSA Construction, Rev. 17; (Jan 2018) 9 of 47
2. The application of the restriction of the Buy American Act to a
particular construction material would be impracticable or
inconsistent with the public interest; or
3. The construction material is not mined, produced, or manufactured
in the United States in sufficient and reasonably available
commercial quantities of a satisfactory quality.
(c) Request for determination of inapplicability of the Buy American Act.
(i)
1. Any Contractor request to use foreign construction material in
accordance with paragraph (b)(iii) of this clause shall include
adequate information for Government evaluation of the request,
including--
A. A description of the foreign and domestic construction
materials;
B. Unit of measure;
C. Quantity;
D. Price;
E. Time of delivery or availability;
F. Location of the construction project;
G. Name and address of the proposed supplier; and
H. A detailed justification of the reason for use of foreign
construction materials cited in accordance with paragraph
(b)(iii) of this clause.
2. A request based on unreasonable cost shall include a reasonable
survey of the market and a completed price comparison table in the
format in paragraph (d) of this clause.
3. The price of construction material shall include all delivery costs to
the construction site and any applicable duty (whether or not a
duty-free certificate may be issued).
4. Any Contractor request for a determination submitted after
contract award shall explain why the Contractor could not
reasonably foresee the need for such determination and could not
have requested the determination before contract award. If the
Contractor does not submit a satisfactory explanation, the
Contracting Officer need not make a determination.
(ii) If the Government determines after contract award that an exception to the
Buy American Act applies and the Contracting Officer and the Contractor
negotiate adequate consideration, the Contracting Officer will modify the
contract to allow use of the foreign construction material. However, when
the basis for the exception is the unreasonable price of a domestic
construction material, adequate consideration is not less than the
differential established in paragraph (b)(iii)(1) of this clause.
(iii) Unless the Government determines that an exception to the Buy American
Act applies, use of foreign construction material is noncompliant with the
Buy American Act.
BSA Construction, Rev. 17; (Jan 2018) 10 of 47
(d) Data. To permit evaluation of requests under paragraph (c) of this clause based on
unreasonable cost, the Contractor shall include the following information and any
applicable supporting data based on the survey of suppliers:
Foreign and Domestic Construction Materials Price Comparison
Construction
material
description
Unit of measure Quantity Price (dollars) *
Item 1
Foreign construction
material
Domestic
construction
material
Item 2
Foreign construction
material
Domestic
construction
material
[List name, address, telephone number, and contact for suppliers surveyed. Attach copy
of response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site and any applicable duty (whether or
not a duty-free entry certificate is issued).]
Article 14 HAZARDOUS MATERIALS IDENTIFICATION AND MATERIAL
SAFETY DATA
With or before each delivery, the Contractor shall submit a Material Safety Data sheet, as
prescribed in 29 CFR 1910.1200 and the latest version of Federal Standard No. 313, for
all hazardous material delivered under this Agreement which will involve exposure to
hazardous materials or items containing these materials, whether or not it is listed in
Appendix A of the Standard. As used in this Article, “hazardous material” is as defined in
the latest version of Federal Standard No. 313, including revisions adopted during the
term of this Agreement.
Article 15 EXCUSABLE DELAYS
The Contractor shall be liable for default unless nonperformance is caused by an
occurrence beyond the reasonable control of the Contractor and without its fault or
negligence such as acts of God or the public enemy, acts of BSA, acts of the Government
in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, unusually severe weather, and delays of common carriers. The
Contractor shall notify BSA in writing as soon as it is reasonably possible after the
BSA Construction, Rev. 17; (Jan 2018) 11 of 47
commencement of any excusable delay, setting forth the full particulars in connection
therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly
give written notice to BSA of the cessation of such occurrence.
Article 16 PAYMENT
(a) Within fourteen (14) days after award, the Contractor shall submit a Schedule of
Values broken down as required in the Supplementary Conditions of the
Specifications, which will provide a basis for determining progress payments. The
Schedule of Values will be subject to BSA’s approval.
(b) BSA will make progress payments against the agreement price on a monthly
basis, or at more frequent intervals as determined by BSA’s PPM Division, as the
work proceeds. If BSA disagrees with the percentage complete of any item
included in an invoice, it shall confer with the Contractor, but if agreement cannot
be reached BSA shall authorize payment as it determines is appropriate and the
Contractor may submit a Claim for the difference in accordance with the Disputes
Article. Each application for payment shall be accompanied by the following
signed certification:
(c) “The undersigned Contractor certifies that to the best of the Contractor’s
knowledge, information and belief, the work covered by this application for
payment has been completed in accordance with the Contract Documents, and
that all work for which previous payments have been received is free and clear of
liens, claims, security interests or encumbrances of any kind. The Contractor
further warrants that title to all work covered by this application for payment will
pass to the Government no later than the time of payment.”
(d) In making such progress payments, BSA shall retain 10% of the estimated amount
until final completion and acceptance of the work. However, if BSA’s PPM
Division determines that the Contractor has achieved satisfactory progress during
any period for which a progress payment is to be made, BSA’s PPM Division
may authorize such payment to be made either with a reduced retention or in full
without retention. Also, when the work is substantially complete, BSA shall retain
an amount it considers adequate to protect BSA and the Government, and at its
discretion, may release all or a portion of any excess amount to the Contractor.
Furthermore, on completion and acceptance of each separate building or other
division of the contract on which this agreement states a separate price, payment
may be made therefore without retention of a percentage.
(e) All equipment, material and work covered by progress payments made shall
thereupon become the sole property of the Government, but this shall not be
construed as:
(i) relieving the Contractor from the sole responsibility for all equipment,
material and work upon which payments have been made or the
restoration of any damaged work, or
(ii) waiving BSA’s rights to require fulfillment of all this Agreement’s terms.
(f) If performance and/or payment bonds are required under this Agreement, BSA
shall reimburse the Contractor the total premiums paid to obtain the bonds. This
reimbursement shall be made at one time together with the first progress payment
otherwise due after the Contractor has –
BSA Construction, Rev. 17; (Jan 2018) 12 of 47
(i) furnished the bonds (including the coinsurance and reinsurance
agreements, when applicable),
(ii) furnished evidence of full payment to the surety company, and
(iii) submitted a request for such payment.
(g) BSA’s reimbursement of the bond premiums shall not be made as increments of
the individual progress payments and shall not be in addition to the agreement
price.
(h) On completion and acceptance of all work hereunder and presentation of a
properly executed invoice, BSA shall pay the Contractor the Agreement Price,
less progress payments made provided the Contractor shall have first furnished
BSA a Release of Liens from all subcontractors, together with a release by the
Contractor of all claims against BSA and the Government arising by virtue of this
Agreement, other than claims in stated amounts as may be specifically excepted
by the Contractor from the operation of the release. If the Contractor’s claim to
amounts payable under this Agreement has been assigned to a bank, trust
company, or other institution, including a Federal lending institution, a release
may also be required of the assignee. BSA may withhold from any final payment
the amount of any Claim it has against the Contractor arising out of the agreement
work, provided it has first given the Contractor notice of the Claim and the
amount for which BSA believes the Contractor is liable.
Article 17 INSPECTION
(a) BSA has the right to inspect and test all items and services (including, but not
limited to, raw materials, components, intermediate assemblies and end products)
to the extent practicable at all times and places including the period of
manufacture, and in any event prior to acceptance. BSA shall perform inspections
and tests in a manner that will not unduly delay the work. If BSA performs tests
or inspections on the contractor’s premises or that of a subcontractor, the
Contractor shall furnish, or cause to be furnished, all reasonable facilities and
assistance for the safe and convenient performance of these duties at no additional
cost to BSA. BSA assumes no contractual obligation to perform any test or
inspection for the Contractor’s benefit unless specifically set forth elsewhere in
this Agreement. BSA’s failure to inspect the items and services shall not relieve
the Contractor from responsibility, nor impose liability on BSA, for
nonconformity.
(b) If BSA specifies an inspection system elsewhere in this Agreement, the
Contractor shall provide and maintain such inspection system and deliver only
those items and services that have been found to conform to the requirements of
this Agreement. The Contractor shall maintain complete records of all inspections
and make them available to BSA during performance and for as long as this
Agreement requires.
(c) If BSA finds the materials or work to be defective, the Contractor shall promptly
repair or replace such materials or work as directed by BSA at no increase in the
agreement price. The Contractor shall bear the transportation cost. If the
Contractor fails to act as directed within 10 days from BSA’s written notice, BSA
may repair or replace such materials or work by contract or otherwise and assess
BSA Construction, Rev. 17; (Jan 2018) 13 of 47
the Contractor the excess cost it incurred as a result and/or terminate the
Contractor for default. If the Contractor is not ready for inspection or if prior
rejection makes reinspection or retest necessary, BSA may charge the Contractor
the additional cost of test and/or inspection. The Contractor shall not tender for
acceptance corrected or rejected items or services without disclosing the former
rejection or requirement for correction, and shall disclose the corrective action
taken.
(d) BSA shall effect acceptance of all materials and services ordered hereunder
within a reasonable time after delivery. Except as otherwise provided for in this
Agreement, acceptance shall be conclusive except as regards latent defects, fraud,
or such gross mistakes as amount to fraud.
Article 18 TAXES
The Agreement price includes all applicable federal, state, and local taxes and duties. In
determining the applicability of any tax or duty, due consideration shall be given to the
relationship of the subject matter of this Agreement to the Government, and the fact that
BSA is exempt from New York State and local sales and use taxes under Exempt
Organization Certificate No. EX-216880.
Article 19 TITLE AND RISK OF LOSS
Unless specified elsewhere in this Agreement, title to items furnished under this
Agreement shall pass to the Government upon acceptance, regardless of when or where
BSA takes physical possession. If BSA makes partial or progress payments, title shall
pass to the Government for the items covered by the payment. Unless the Agreement
specifically provides otherwise, risk of loss or damage to the items provided under this
Agreement shall remain with the Contractor until delivery of the items to the destination
specified in the Agreement.
Article 20 WARRANTY
Notwithstanding inspection and acceptance by BSA under any provision of this
Agreement, the Contractor warrants that the material, supplies and/or equipment
delivered (hereinafter called “the goods”) and any services performed hereunder, shall be
of first-class quality and shall accord in every respect with the description, specifications,
drawings, and/or samples elsewhere identified in this Agreement. The Contractor also
warrants that all goods delivered hereunder shall be free from defects in design (unless
the design is furnished by the Buyer), material and workmanship. The warranty shall
begin on acceptance and extend for a period of one year or the manufacturer’s warranty
period, whichever is longer. If any nonconformity appears within that time, BSA, in
addition to any other rights and remedies provided by law, or under other provisions of
this Agreement, may require the Contractor to
(a) replace or repair the goods and/or reperform the services at no increase in price or
(b) reduce the Agreement price to reflect the reduced value of the Contractor’s
performance.
When supplies are returned, the Contractor shall bear the risk of loss and transportation
cost. If the Contractor fails to replace or repair the goods or reperform the services within
10 days of BSA’s written notice to do so, BSA shall have the right by contract or
BSA Construction, Rev. 17; (Jan 2018) 14 of 47
otherwise to replace or repair the goods or reperform the services, and charge the
Contractor the cost occasioned thereby. Furthermore, the warranties provided for in this
paragraph shall be in addition to such other warranties as may be specifically provided
for elsewhere in this Agreement.
Article 21 EXTRAS
Except as otherwise provided in this Agreement, BSA shall not pay for extras unless
authorized in writing by BSA.
Article 22 LIMITATION OF LIABILITY
Except as otherwise provided by an express or implied warranty, the Contractor will not
be liable to BSA for consequential damages resulting from any defect or deficiencies in
accepted items.
Article 23 COMPLIANCE WITH LAWS
(a) The Contractor shall comply with all applicable federal, state, local laws and
ordinances, executive orders, all pertinent lawful orders, rules and regulations,
including those applicable by reason of the fact that this Agreement is issued
under the Prime Contract and such compliance shall be a material requirement of
this Agreement. If the Contractor is required to obtain licenses and/or permits to
comply with this Article, it will do so without additional expense to BSA.
(b) The Contractor warrants that each chemical substance constituting or contained in
items furnished by this Agreement is on the list of substances published by the
Administrator of the Environmental Protection Agency pursuant to the Toxic
Substances Control Act, as amended. With each delivery the Contractor shall
provide BSA any applicable Material Safety Data Sheet as required by the
Occupational Safety and Health Act and applicable regulations including, without
exception, 29 CFR 1910.1200.
(c) The Contractor shall perform work under this Agreement in a manner that is safe,
healthy and environmentally acceptable, and shall develop and manage a
comprehensive program in support of these objectives. Specific requirements may
be included in special or supplemental terms to this Agreement.
(d) The Contractor shall include this clause in all subcontracts, at any tier, involving
performance of this Agreement.
Article 24 COMPLIANCE WITH INTERNET PROTOCOL VERSION 6 (IPv6)
IN ACQUIRING INFORMATION TECHNOLOGY
This clause is applicable if this contract involves the acquisition of Information
Technology (IT) that uses Internet Protocol (IP) technology. The Contractor agrees that
(a) all deliverables that involve (IT) that uses (IP) (products, services, software, etc.)
comply with IPv6 standards and interoperate with both IPv6 and IPv4 systems
and products; and
(b) it has IPv6 technical support for fielded product management, development and
implementation available.
If the Contractor plans to offer a deliverable that offers IT that is not initially compliant,
the Contractor agrees to
BSA Construction, Rev. 17; (Jan 2018) 15 of 47
(c) obtain BSA’s approval before starting work on the deliverable; and
(d) have IPv6 technical support for fielded product management, development and
implementation available.
Should the Contractor find that the Statement of Work or specifications of this contract
do not conform to IPv6 standards, it must notify BSA of such nonconformance and act in
accordance with BSA’s instructions.
Article 25 AUTHORIZATION AND CONSENT
The Government has given its authorization and consent for all use and manufacture of
any invention described in and covered by a patent of the United States in the
performance of this Agreement or any part hereof or any amendment hereto or any
subcontract hereunder (including any lower-tier subcontract) which is expected to exceed
$100,000.
Article 26 PATENT INDEMNITY-SUPPLIES AND SERVICES
If the amount of this Agreement is in excess of $10,000, the Contractor shall indemnify
BSA, the Government, and their officers, agents, and employees against liability,
including costs, for infringement of any United States letters patent (except U.S. letters
patent issued upon an application which is now or may hereafter be kept secret or
otherwise withheld from issue by order of the Government) arising out of the
manufacture or delivery of supplies or out of construction, alteration, modification, or
repair of real property (hereinafter referred to as "construction work") under this
Agreement, or out of the use or disposal by or for the account of the Government or BSA
of such supplies or construction work. The foregoing indemnity shall not apply unless the
Contractor shall have been informed as soon as practicable by the Government (with
notice to BSA) of the suit or action alleging such infringement, and shall have been given
such opportunity as is afforded by applicable laws, rules, or regulations to participate in
the defense thereof, and further, such indemnity shall not apply to:
(a) An infringement resulting from compliance with specific written instructions of
BSA or the Government directing a change in the supplies to be delivered or in
the materials or equipment to be used, or directing a manner of performance of
the Agreement not normally used by the Contractor.
(b) An infringement resulting from addition to, or change in, such supplies or
components furnished or construction work performed which addition or change
was made subsequent to delivery or performance by the Contractor, or
(c) A claimed infringement which is settled without the consent of the Contractor,
unless required by final decree of a court of competent jurisdiction.
Article 27 REPORTING OF ROYALTIES
If this Agreement is in an amount which exceeds $10,000 and if any royalty payments
totaling more than $250 are directly involved in the Agreement or are reflected in the
Agreement price to BSA, the Contractor agrees to report in writing to the Government
through BSA during the performance of this Agreement and prior to its completion or
final settlement the amount of any royalties or other payments paid or to be paid by it
directly to others in connection with the performance of this Agreement together with the
BSA Construction, Rev. 17; (Jan 2018) 16 of 47
names and addresses of licensors to whom such payments are made and either the patent
numbers involved or such other information as will permit identification of the patents or
other basis on which royalties are to be paid. The approval of DOE or BSA of any
individual payments or royalties shall not stop the Government at any time from
contesting the enforceability, validity or scope of, or title to, any patent under which a
royalty or payments are made.
Article 28 NOTICE AND ASSISTANCE REGARDING PATENT AND
COPYRIGHT INFRINGEMENT
The provisions of this clause shall be applicable only if the amount of this Agreement
exceeds $100,000.
(a) The Contractor shall report to the Government through BSA promptly and in
reasonable written detail, each notice or claim of patent or copyright infringement
based on the performance of this Agreement of which the Contractor has
knowledge.
(b) In the event of any claim or suit against the Government on account of any
alleged patent or copyright infringement arising out of the performance of this
Agreement or out of the use of any supplies furnished or work or services
performed hereunder, the Contractor shall furnish to the Government when
requested by the Government or BSA, all evidence and information in possession
of the Contractor pertaining to such suit or claim. Such evidence and information
shall be furnished at the expense of the Government except where the Contractor
has agreed to indemnify the Government or BSA.
(c) This clause shall be included in all subcontracts.
Article 29 SUSPECT/ COUNTERFEIT ITEMS
(a) "Suspect Items" are items, for which there is an indication by visual inspection,
testing, or other information that it may not conform to established Government-
or industry-accepted specifications or national consensus standards. “Counterfeit
Items” are suspect items that are a copy or substitute without legal authority to do
so or whose material, performance, or characteristics are knowingly
misrepresented by the supplier, distributor, or manufacturer. Forms of
misrepresentation include, but are not limited to, the following:
(b) falsified product sources (counterfeits);
(c) falsified or modified quality assurance records;
(d) false marking as to class, type, or grade;
(e) mixing of unmarked materials with marked materials;
(f) false labeling as to qualification or acceptance by testing/certifying organizations
and
(g) used and/or refurbished products misrepresented as new products.
(h) Types of materials, parts, and components, known to have been misrepresented
include, but are not limited to:
(i) lifting materials such as slings, hooks, cables, and shackles;
(j) threaded fasteners fraudulently marked as high-strength bolts;
(k) refurbished electrical circuit breakers sold under false certifications;
BSA Construction, Rev. 17; (Jan 2018) 17 of 47
(l) valves;
(m) piping and piping components;
(n) electrical devices;
(o) channel members, plate, bar, and flanges;
(p) and other structural items.
(i) See the BNL Suspect / Counterfeit Items, Subject Area Exhibits, found at:
https://sbms.bnl.gov/sbmsearch/subjarea/72/72_SA.cfm?parentID=72, for
more information on identifying suspect/counterfeit items. S/CIs may pose
immediate and potential threats to the safety of DOE and contractor
workers, the public, and the environment. Failure of a safety or mission
critical system due to an S/CI could also have security implications at
DOE facilities.
(q) Items furnished to BSA under this Agreement shall not include
suspect/counterfeit parts nor shall such parts be used in performing any work
under this Agreement whether on or off the Laboratory site.
(r) If suspect/counterfeit parts are furnished under this Agreement and are found on
the Laboratory site, such parts shall be impounded by BSA or they shall be
removed by the Contractor as directed by BSA. The Contractor shall promptly
replace such parts with supplies acceptable to BSA and the Contractor shall be
liable for all costs relating to impoundment, removal, and replacement. BSA may
turn such parts over to the U.S. Office of the Inspector General for investigation
and reserves the right to withhold payment pending the outcome of any
investigation.
(s) The rights of BSA in this clause are in addition to any other rights provided by
law or under this Agreement.
Article 30 APPLICABLE LAW
The parties agree that the federal common law of government contracts will govern the
construction and interpretation of this Agreement and all claims arising under or related
to this Agreement or work performed under this Agreement or claims of breach of this
Agreement, regardless of the forum in which any party to this Agreement brings action.
For purposes of this Agreement, the federal common law of government contracts will
consist of the interpretation of contract clauses and the law enunciated and applied to
government contracts by the Boards of Contract Appeals, the Comptroller General (CG),
and Federal Courts having jurisdiction over the Boards or the CG. The term "Board of
Contract Appeals" means those established under the Contract Disputes Act of 1978, 41
U.S.C. 607(a)(1), and successor bodies.
Article 31 BANKRUPTCY
If the Contractor enters into any proceeding relating to bankruptcy, it shall give written
notice to BSA’s Procurement and Property Management Division (PPM) via certified
mail with five (5) days of initiating the proceedings. The notification shall include the
date on which the proceeding was filed, the identity and location of the court and a
listing, by Contract number, of all BSA agreements for which final payment has not been